Man sues DHS, NSA for the right to parody them on mugs, T-shirts

"Forbidding citizens from criticizing them is beyond the pale,” lawyer says.

For 10 years, a Minnesota man has been selling T-shirts, mugs, and other items with slogans like “Department of Homeland Stupidity” and “The NSA: the only part of the government that listens.”

In 2011, the Department of Homeland Security and the National Security Agency sent a cease-and-desist order against Zazzle, the original manufacturer of these items for the website LibertyManiacs.com. The government agencies argued that it is a crime to use, mutilate, or alter a government seal without permission. (The site has now switched over to CafePress.)

On Tuesday LibertyManiacs owner Dan McCall sued those agencies, arguing that he has a First Amendment right to parody the DHS, the NSA, and other government offices, and that he should be allowed to use the relevant seals.

“The agencies’ attempts to forbid McCall from displaying and selling his merchandise are inconsistent with the First Amendment,” said Paul Alan Levy, the Public Citizen attorney handling the case, in a statement. “It’s bad enough that these agencies have us under constant surveillance; forbidding citizens from criticizing them is beyond the pale.”

Public Citizen is representing McCall in his suit against those government agencies, and it is asking a federal court to declare that these federal laws are unconstitutional on the grounds that they violate the First Amendment.

I remember running into this guy's site a little while ago. What they should be charging him with is the prices he's asking; that's the only criminal act here.

Anyway, back to the plot: surely various government artwork such as seals and the like belong to us, the people? I would have thought that so long as he's not trying to pass himself off as a member of said agencies, use of these would be fair game?

The government agencies should read the laws they are citing, as they make it pretty clear that the crime is to use the seal in a fraudulent way. It's basically much like trademark law with a minor tweak.

I remember running into this guy's site a little while ago. What they should be charging him with is the prices he's asking; that's the only criminal act here.

Anyway, back to the plot: surely various government artwork such as seals and the like belong to us, the people? I would have thought that so long as he's not trying to pass himself off as a member of said agencies, use of these would be fair game?

The artwork itself is public domain, but is protected by statute. Basically, it's limited to passing off and implied endorsement.

This could get interesting. Odds are the Supreme Court (I'm betting it will end up there) either caves in to the DHS/NSA or rules in favor of the people and the DHS/NSA refuse to abide by the ruling and harass this guy until he closes shop.

Gosh! That is not what the government is arguing . The government simply do not want this guy to use their seals, flags or whatever to sell his merchandise. I do not think it is a crime but the government have a point.

#1: "...government simply do not want this guy to..." OK, they don't want it. But under what law can they stop it? And is that law constitutional? Your constitution protects the right to burn old glory. I don't approve of flag burning, but the right to burn it is more important than the flag. US courts have upheld the 1st amendment in those cases preciesly because flag-burning is a kind of political criticism.

#2: Even in cases of intellectual property, parody has explicit exemptions. Why? See #1.

Gosh! That is not what the government is arguing . The government simply do not want this guy to use their seals, flags or whatever to sell his merchandise. I do not think it is a crime but the government have a point.

I can understand concerns like people impersonating Federal agents, but come on! What's next? Marshall Dillon can't wear a badge on Gunsmoke because people might confuse him with a real Federal Marshall? Mulder and Sculley can't wear badges on X Files because people might confuse them with real FBI agents, and think there really are X files?

First, they listen to everything you say. Next, they tell you what you cannot say. Then, they tell you what you must say.

This could get interesting. Odds are the Supreme Court (I'm betting it will end up there) either caves in to the DHS/NSA or rules in favor of the people and the DHS/NSA refuse to abide by the ruling and harass this guy until he closes shop.

I'm fairly certain that the whole "non-official use" of governement seals was already hashed out once...

I can understand concerns like people impersonating Federal agents, but come on! What's next? Marshall Dillon can't wear a badge on Gunsmoke because people might confuse him with a real Federal Marshall? Mulder and Sculley can't wear badges on X Files because people might confuse them with real FBI agents, and think there really are X files?

First, they listen to everything you say. Next, they tell you what you cannot say. Then, they tell you what you must say.

Gosh! That is not what the government is arguing . The government simply do not want this guy to use their seals, flags or whatever to sell his merchandise. I do not think it is a crime but the government have a point.

No the government does not have a point. The seals are used in jest and are critical of the government's actions. As such it is protected speech under the First Amendment.

Now, if this man was making shirts with the seal above the left breast, in gold colored embroidery and had OFFICER written on the back, the government would have a slam dunk case: the shirts could be used to impersonate government officials. But that is not the case here.

As far as I'm aware, use of the logo is perfectly legal. It is illegal, for example, to represent yourself as a cop if you aren't one -- but it's perfectly legal to walk around in a shirt that says "NYPD." The NYPD actually sells such clothing itself.

A T-shirt or article of clothing with a logo or parody message on it does not represent you as a member OF that group in any kind of formal sense. And that's the only grounds I can think of that would justify the NSA cracking down.

Gosh! That is not what the government is arguing . The government simply do not want this guy to use their seals, flags or whatever to sell his merchandise. I do not think it is a crime but the government have a point.

No, they do not have a point. The symbols, slogans, and logos of government agencies need to be as open to use for parody and satire as those of corporate or private citizens. This is an important component of our freedom to criticize the government. The use of humor as a means of making political statements has a lot of history, note the political cartoon in nearly every western newspaper. If the government forbids the use of the trappings of it's ministries in making such statements it will be a serious loss of free speech rights.

The current laws were meant to prevent official seals and logos from being used in a fraudulent manner, which is needed for maintaining the safety of citizens from criminals trying to present themselves as legitimate agents of the government. If our courts are still half way legitimate this should go very much in the direction of the Mr. McCall.

Would have been nice to have a comparison to the actual NSA seal, probably a lot of us don't actually know what most government agencies use and in turn how different (if it all) the parody is. Here it is:So basically the shirt looks identical from any sort of distance. Does have some different text along the bottom, but would have been a better parody IMO if it actually deviated more significantly from the logo. If this was simple trademark infringement I'm actually not sure how much of a case he'd have since it doesn't look very transformative. But the actual governing rule cited is somewhat different:

Quote:

Public Law 86-36, 50 U.S.C. § 3613, that prohibits “use [of] the words ‘National Security Agency,’ the initials, ‘NSA,’ the seal of the National Security Agency, or any colorable imitation of such words, . . . in connection with any merchandise, impersonation, solicitation, or commercial activity in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency” (emphasis added), without the permission of NSA.

Unlike straight up commercial trademark, I don't think it can be argued here that his work meets that standard. It might be a bit lazy and a direct use of their seal, but I don't see how it's at all "reasonably calculated to appear official/authorized" either. So they should lose.

"Forbidding citizens from criticizing them is beyond the pale,” lawyer says

This is a little far into hyperbole too. Come on, you don't need to swallow this sort of line whole, obviously the NSA isn't remotely trying to keep people from calling them big doodoo heads or engaging in any other sort of public debate or criticism. An argument over direct seal use is a pretty tiny subset of that. One that I think they're in the wrong on, but to even slightly relate it to "forbidding criticism" seems a bit off.

Edit: Worth noting too that when it comes to government we should be erring on the side of criticism, better to have too much then too little. All else being equal I'd lean towards as open use as possible anyway, and hopefully judges treat any such claims by government with a jaundiced eye as well.

The government agencies should read the laws they are citing, as they make it pretty clear that the crime is to use the seal in a fraudulent way. It's basically much like trademark law with a minor tweak.

No kidding. Even when the NHL suspends a player they state which specific rule (and sub rule) he breaks. If they know the law so well, they could be so kind as to point out which one exactly is being broken.

Gosh! That is not what the government is arguing . The government simply do not want this guy to use their seals, flags or whatever to sell his merchandise. I do not think it is a crime but the government have a point.

I think it has to do with the government not wanting to be associated with them, then again this is the government.

When I designed jerseys and t-shirts for my school club sport, I was told what I could or could not use - basically any official logo not associated with the school was off limits, like Facebook or sport league logo. The school didn't want people to misinterpret the companies/brands as school sponsors. I actually had to put the club's "sponsors" in plain text and redesign the league logo to look like the official but be different at the same time.

On the flip side, my friend's university didn't care if their logo was accompanied by other companies/brands - official and all. He ended up getting a couple local restaurants to sponsor his club team, and had their official logos put on the jerseys.

As an owner of 1/~300,000,000th stake in the disputed seals, I am officially recognizing this individual's right to use my seals and decorations in parody and satire materials that are not intended for fraud or misrepresentation.

Would have been nice to have a comparison to the actual NSA seal, probably a lot of us don't actually know what most government agencies use and in turn how different (if it all) the parody is. Here it is:So basically the shirt looks identical from any sort of distance. Does have some different text along the bottom, but would have been a better parody IMO if it actually deviated more significantly from the logo. If this was simple trademark infringement I'm actually not sure how much of a case he'd have since it doesn't look very transformative. But the actual governing rule cited is somewhat different:

Quote:

Public Law 86-36, 50 U.S.C. § 3613, that prohibits “use [of] the words ‘National Security Agency,’ the initials, ‘NSA,’ the seal of the National Security Agency, or any colorable imitation of such words, . . . in connection with any merchandise, impersonation, solicitation, or commercial activity in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency” (emphasis added), without the permission of NSA.

Unlike straight up commercial trademark, I don't think it can be argued here that his work meets that standard. It might be a bit lazy and a direct use of their seal, but I don't see how it's at all "reasonably calculated to appear official/authorized" either. So they should lose.

"Forbidding citizens from criticizing them is beyond the pale,” lawyer says

This is a little far into hyperbole too. Come on, you don't need to swallow this sort of line whole, obviously the NSA isn't remotely trying to keep people from calling them big doodoo heads or engaging in any other sort of public debate or criticism. An argument over direct seal use is a pretty tiny subset of that. One that I think they're in the wrong on, but to even slightly relate it to "forbidding criticism" seems a bit off.

I was thinking along these lines.

But what stops from say... Late Night or Jon Stewart from displaying the same sort of mock up and talking about it on air? Is it because this guy is merchandising and directly profiting from the use of govt seals and logos?

The guy is better off doing a slight alteration of it, much like anyone that wishes to parody a corporation logo on a shirt and sell it.

God forbid we make fun of people that are constantly asking to be made fun of. Don't want to be treated like idiots, don't be idiots. Pretty simple and straight forward common sense and logic there. Oops...forgot, the government disavows those two things.

Would have been nice to have a comparison to the actual NSA seal, probably a lot of us don't actually know what most government agencies use and in turn how different (if it all) the parody is. Here it is:So basically the shirt looks identical from any sort of distance. Does have some different text along the bottom, but would have been a better parody IMO if it actually deviated more significantly from the logo. If this was simple trademark infringement I'm actually not sure how much of a case he'd have since it doesn't look very transformative. But the actual governing rule cited is somewhat different:

Quote:

Public Law 86-36, 50 U.S.C. § 3613, that prohibits “use [of] the words ‘National Security Agency,’ the initials, ‘NSA,’ the seal of the National Security Agency, or any colorable imitation of such words, . . . in connection with any merchandise, impersonation, solicitation, or commercial activity in a manner reasonably calculated to convey the impression that such use is approved, endorsed, or authorized by the National Security Agency” (emphasis added), without the permission of NSA.

Unlike straight up commercial trademark, I don't think it can be argued here that his work meets that standard. It might be a bit lazy and a direct use of their seal, but I don't see how it's at all "reasonably calculated to appear official/authorized" either. So they should lose.

"Forbidding citizens from criticizing them is beyond the pale,” lawyer says

This is a little far into hyperbole too. Come on, you don't need to swallow this sort of line whole, obviously the NSA isn't remotely trying to keep people from calling them big doodoo heads or engaging in any other sort of public debate or criticism. An argument over direct seal use is a pretty tiny subset of that. One that I think they're in the wrong on, but to even slightly relate it to "forbidding criticism" seems a bit off.

I was thinking along these lines.

But what stops from say... Late Night or Jon Stewart from displaying the same sort of mock up and talking about it on air? Is it because this guy is merchandising and directly profiting from the use of govt seals and logos?

The guy is better off doing a slight alteration of it, much like anyone that wishes to parody a corporation logo on a shirt and sell it.

He did alter it. He replaced "UNITED STATES OF AMERICA" with "PEEPING WHILE YOU'RE SLEEPING".

You can buy such a shirt for $25.50 including shipping from Cafe Press using the link in the article. Do it quick before Cafe Press gets The Letter. (Yes, I've already placed my order. There's even a discount coupon, although I didn't see it until too late. It's BOO25 and it's good until midnight Tuesday.)

I can understand concerns like people impersonating Federal agents, but come on! What's next? Marshall Dillon can't wear a badge on Gunsmoke because people might confuse him with a real Federal Marshall? Mulder and Sculley can't wear badges on X Files because people might confuse them with real FBI agents, and think there really are X files?

First, they listen to everything you say. Next, they tell you what you cannot say. Then, they tell you what you must say.

I'm going to go with the idea that even if the government has a legal right to demand this guy stop using their logos, this is definitely one of those times where you just let him do it. Because guaranteed this is going to make things worse for them than had they just left well enough alone.

But what stops from say... Late Night or Jon Stewart from displaying the same sort of mock up and talking about it on air?

Nothing? That would not be "calculated to appear endorsed" either. Furthermore, using it as the subject of discussion would be purely descriptive, minimal use, and directly part of speech and protected even for fully commercial work.

Quote:

The guy is better off doing a slight alteration of it, much like anyone that wishes to parody a corporation logo on a shirt and sell it.

Well, it'd be cooler and probably a bit clearer in general yeah, but even if he'd have been "better off" doing that I don't think it's required by law.

When the government file frivolous lawsuit like that, the gov lawyer fee should be paid by the top guys that approve the lawsuit instead of the gov. That way he would think twice before wasting money on a lawsuit that fall clearly in fair use.

If this was simple trademark infringement I'm actually not sure how much of a case he'd have since it doesn't look very transformative.

Trademark law only applies when two companies operate in the same industry, so there would be no case.

Under trademark law it is perfectly fine to use somebody else's logo as long as you are not a competitor of theirs. A fruit store can use an apple with a bite taken out of it as their logo, but a phone manufacturer cannot.

You might get in trouble from a copyright perspective... but under US law, the government cannot hold copyright, all their stuff is public domain.

It IS a real thing, although I'm not sure how parody plays into it. It's why the Whitehouse gives out souvenirs with the seal of the President on various things - they are the only ones allowed to. Probably more intended to give a heavy penalty to dissuade people thinking about pretending to be government officials. Might depend on how much he is changing the symbol.

I'm pretty sure I've seen the Seal of the POTUS on parody shows like SNL. Maybe it was subtly altered and I didn't notice.